United States v. 2020-11-10 | 20-30033 | USA V. HORACIO CANO | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HORACIO LUNA CANO,

Defendant-Appellant.

No. 20-30033

D.C. No. 2:17-cr-00101-WFN-22

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding

Submitted November 9, 2020
**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Horacio Luna Cano appeals from the district court’s judgment and
challenges the 12-month sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Luna Cano first argues that the district court procedurally erred by failing to

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

NOV 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 20-30033
calculate or announce the Guidelines range at the revocation hearing. Even
assuming this claim is not waived by Luna Cano’s waiver of his right to have a
presentence report prepared at his original sentencing and his agreement to proceed
directly to sentencing upon revocation, we conclude that the district court did not
plainly err. See United States v. Depue, 912 F.3d 1227, 1232-34 (9th Cir. 2019)
(en banc). There is no evidence in the record to suggest that the district court’s
sentence was outside the applicable Guidelines range,
1
and the district court made
clear that it believed a 12-month sentence, rather than the time-served sentence
Luna Cano was requesting, was warranted in light of the circumstances of the case,
including the lenient sentence Luna Cano originally received, his prior promise not
to return to the United States, and his decision to violate supervised release so soon
after his release. On this record, Luna Cano has not shown a reasonable
probability that he would have received a different sentence had the district court
calculated the Guidelines range. See id. at 1234.
Luna Cano also contends that the 12-month statutory maximum sentence is
substantively unreasonable. He argues that a time-served sentence would have
been sufficient given the punishment he was facing for his new offense, his reasons

1
The 12-month sentence is within or below the applicable Guidelines range unless
Luna Cano has a criminal history category of I. While Luna Cano’s criminal
history category has never been determined, the pretrial services report prepared in
connection with the original offense reflects that he has several prior convictions.

3 20-30033
for returning to the United States, and the need to deter. The district court did not
abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing
factors and the totality of the circumstances. See Gall, 552 U.S. at 51. The fact
that a shorter sentence might also have been appropriate is not sufficient to show
that the district court abused its discretion. See id.
AFFIRMED.